The PERM form 9089 should completely match all advertisements

The DOL has complex rationale, where the filing of a PERM form, 9089 becomes a mechanical process, whereby one should suspend their thought process. In a recent case, Prosoft Associates Inc,  The employer put down "drug testing and background check in the job order for the State Workforce Agency, but forgot to add that to the 9089.  The employer later sought to amend it, but  the Board of Alien Labor certification (BALCA) cannot look at new evidence.  Neither does the Certifying Officer give any leeway to an employer to change anything. BALCA held that the requirement of drug testing and background check, not otherwise mentioned in 9089, would "deter otherwise well qualified individuals from applying."  Everyone with common sense realizes that the employer simply forgot to add this requirement in the 9089, and that such requirements are routine part of most employers.  But then, the Dept of Labor lacks that sense.  And of course people with common sense don't visit the DOL's website to look for jobs either. 

The simple thing to do is to craft a final job description, and then copy and paste it in the Prevailing Wage Request, every advertisement, and in the 9089. That way, employers wont make mistakes. Because whatever the employer does on the 9089 form is chiseled in stone like the ten commandments, never to be corrected. 

Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information.

PERM and Form over Matter

The filing of a labor certification is like a game. It has all these utterly inconsequential rules. And if you don't dot your I s and cross your T s, it gets denied. This is totally contrary to our doctrine of substance over matter.  This common law doctrine has been in our legal system since ages, but of course, that would require thinking, something that Department of Labor (DOL) employees are not required to do.

And the Board of Alien Labor Certification (BALCA)  over the years has upheld some and denied some of those rules. BALCA has said that if you advertise on a Sunday and by mistake put down a Monday date, that is fine. The court has said its not required to put in "magic language" if you want alternative qualifications. Now the case, World Agape Mission Church has done away with 2 other inane requirements.


The Employer had advertised in the website of the State Workforce Agency. (SWA) But did not have the documentation to prove that during the audit. The Board of Alien Labor Certification (Balca) said that the regulations does not require the Employer to keep such documentation. Most SWAs have crappy websites. I wonder which American would go looking for a job in the SWA database rather than going to Monster or other such engines.

The Employer also does not need to print its name if they advertise in Private Employment Firm.

Other inane requirements still in force: advertise in Sunday newspaper. This is DOL's way of preserving this dinosaur we have called newspapers.  At the rate that newspapers are closing, and at the rate that DOL changes their regulations, the DOL will have that regulations at least 2 years after the last newspaper closes.

 Contact Houston Immigration Lawyer, or Houston Immigration Attorney Annie Banerjee, for more information

Griping about DOL's Prevailing Wage system

Why do Governments have a wonderful capacity of taking something completely good and turning it into a nightmare? Does the very definition of democracy mean "you cannot get anything done quickly when dealing with the Government?"

The DOL launched its new Prevailing Wage System on January 01, 2010. Previous to that the State Workforce Agencies (SWA) determined the Prevailing Wage for their state. A Prevailing Wage Determination (PWD) is required to determine what the wage rate should be for a job. Previously the SWAs were widely different and caused a lot of problems. So DOL wanted to centralize the process. Commendable indeed, but they introduced this whole thing with no alpha or beta testing whatsoever.

The DOL created a form, which has to be filled in by hand or typing and then snail mailed to the DOL. DOL then types it into their system. A form that we could submit electronically would have been so much easier and traceable, (like PERM), but DOL wont have that. We send ours by certified mail, and then we don't hear from one or two of them at all. They get lost in the mail. We have certified receipts to prove they reached DOL's doors, but no way to follow up.

The officers who determines the are untrained. They sometimes ask stupid questions. Some get returned if we use the major as "general" even if this is for a third preference skilled worker job. The officers do NOT have basic training. I can understand some confusion initially, but we have crossed the six month mark. And the determinations vary so widely from one adjudicator to the other, that they outdo the variance between the different SWAs. So much for a centralized system.

The PWD takes forever to get done and come back, and then it is sometimes valid for barely two months. After that the employer has to advertise for the job, wait a month and then file. And the Prevailing Wage has to be valid at the time of filing. Since advertisements are valid for 6 months only, and there is no knowing when we will get the prevailing wage from DOL, it is not advisable for employers to start advertising without the prevailing wage determination.

There are only so many combination that the PWD form can have. The simple solution would be to mechanize the whole system and have a computer determine the prevailing wage. It would make far less mistakes than humans and would be a lot cheaper. But then, that is not how the system works.


For more information contact Houston Immigration Lawyer or Houston Immigration Attorney, Annie Banerjee

What is a Company for Immigration Purposes?

A Company is defined as its Federal Employment Identification Number (FEIN) for Immigration issues. When a Corporation seeks to hire a foreign national under a federal Immigration Law, it stands to reason that the Company should have a FEIN in order to hire that individual.

In a recent decision, In the Matter of Ornelas Inc, The Board of Immigration Appeals verified that the Company's yellow page listing, or business licenses does not establish a bona fide Company.

Additionally, if two related companies have two different FEIN numbers, and the alien has worked for one entity, and the other entity is sponsoring the alien, the alien can use that experience and it will not be counted as experience from the same Company. Usually the alien cannot use the experience from the same company for labor certification, with the rationale being that the company can easily employ and American and train that person as well. But if say XY has two FEIn numbers, and the alien has worked for a division of Company X, and the petitioner is Y, then that expiration can be counted, even though the two companies are in the same location.

Thus if the two related companies have two different FEIN numbers, the Labor Dept treats them as two separate companies. Does not make sense, but then, the Dept of Labor never lives in a real world.

Contact Houston Immigration Lawyer, Annie Banerjee for more details